Category: Litigation

Vuse Menthol Pods Granted Stay

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Two menthol Vuse flavors that received a marketing denial order (MDO) can continue to be marketed by R.J. Reynolds Vapor Co. after the federal 5th Circuit Court of Appeals issued a stay.
Last week, the U.S. Food and Drug Administration denied Reynolds Vapor’s premarket tobacco product applications for the Vuse replacement cartridge Menthol 4.8 percent G1 and the Vuse replacement cartridge Menthol 4.8 percent G2.
As a result, Reynolds would be prohibited from marketing or distributing the products domestically or risk FDA enforcement action. However, the appeals court’s decision allows the products to stay in the marketplace.
In October last year, the FDA issued MDOs for several menthol-flavored vaping products marketed by Logic Technology Development. It was the first time the FDA issued MDOs for menthol products after receiving a scientific review.
A few days after the order was issued, Logic obtained a court order from the U.S. Circuit Court of Appeals for the 3rd Circuit that temporarily stayed the order.
March 22, 2023
Court Won’t Hear At-Home Smoking Ban Challenge

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The U.S. Supreme Court on March 20 declined to hear a challenge to the federal government’s ban on smoking in public housing, reports Law360.
A New York group advocating for residents’ right to smoke in their apartments, sued the U.S. Department of Housing and Urban Development (HUD) for imposing the ban in 2016. The no-smoking rule applies within public housing apartments and in common areas, as well as within 25 feet outside apartment buildings.
NYC CLASH argued the ban violates tenants’ rights to due process and against unconstitutional seizures.
In August 2022, the D.C. circuit upheld the ban, arguing the 1937 Housing Act gave HUD the power to regulate smoking to improve air quality and maintain “safe and habitable” living quarters.
NYC CLASH’s founder Audrey Silk said his group’s legal challenge was about more than just tobacco smoking. “It is about the right to be left alone in your private home to use a legal product and by keeping government in check,” she said. “So the more ominous question now is ‘what’s next?’”
March 21, 2023
Republic Awarded $2.3 Million

Federal jurors in Atlanta awarded Republic Brands $2.3 million in statutory damages in a case about counterfeit tobacco rolling papers.
The company had accused Star Importers & Wholesalers and ZCell & Novelties of selling fake versions of its Top and Job rolling papers in the United States. Amin S. Hudda and Samadali Lakhani, the respective owners of the distribution companies, will also be held personally responsible for the counterfeiting activities.
According to Law360, the jury found that Republic hadn’t proven that the wholesalers willfully bought and sold fake rolling papers bearing Top and Job trademarks.
Had the jurors found the companies’ infringement willful, each could have faced up to $18 million in statutory damages under the Lanham Act, as well as treble damages under federal law.
The case marks Republic Brands’ latest victory in its fight against brand piracy. Over the past two years, the company obtained judgments against four wholesale companies operating in Georgia and their respective owners, personally, for engaging in illegal infringing activities and selling counterfeit goods, according to Adams and Reese, which represented Republic Brands.
In 2022, Republic won an $11 million judgement against another Georgia wholesaler and its owner.

March 21, 2023
Juul Settles Chicago Youth Marketing Suit

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Juul Labs and the city of Chicago have reached a $23.8 million settlement over claims that the e-cigarette maker deceptively marketed its products and for selling vaping products to underage users, reports Reuters, citing the Chicago mayor’s office.
The vaping company is currently facing thousands of lawsuits filed across the United States over claims on its marketing practices and for contributing to rising tobacco use among youth.
In the settlement, Chicago said Juul has denied and continues to deny any wrongdoing and liability in connection with the design, manufacture, production, advertisement, marketing, distribution, sale, use and performance of its products.
According to the settlement, the company has agreed to pay the city $2.8 million within 30 days of the execution of the agreement.
Chicago would receive an additional $21 million payment later this year under the current schedule and may potentially receive up to $750,000 in additional, court-awarded payments, the Chicago mayor’s office said.
March 13, 2023
Altria Asks FTC to Drop its Juul Challenge

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Altria Group has asked the U.S. Federal Trade Commission (FTC) to drop its 2020 challenge of the company’s 2018 acquisition of a 35 percent share in Juul Labs, reports Reuters. On March 3, the tobacco giant announced it had exchanged its stake for a license to Juul’s heated tobacco intellectual property rights.
In its legal challenge, the FTC contends that the tobacco giant’s $12.8 billion investment in Juul violates antitrust law because the company acquired the position rather than continuing to compete against Juul in the market for closed-system e-cigarettes.
In February 2022, an administrative law judge dismissed the FTC’s claims, finding that the evidence failed to sustain the alleged violations.
The next step would have been for the full commission to decide whether to accept that decision and dismiss the FTC case.
However, Altria recently exited its investment and previously terminated a non-compete agreement with Juul that the FTC opposed.
“There is nothing left of the transaction to be challenged. Altria and JLI respectfully ask the commission to dismiss this matter as moot,” Altria Group and Juul Labs wrote in a filing to the FTC.

March 8, 2023
UL Solutions Obtains Consent Decree

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UL Solutions obtained a consent decree against two companies selling vaporizer devices with unauthorized UL Marks, reports PR Newswire. Arizer, a manufacturer of vaping devices, and Greenlane Holdings, a distributor of vaping devices, both stipulated to a consent decree, permanent injunction and judgment of $2.2 million as part of a settlement of UL Solutions’ claims against them for trademark counterfeiting and false advertising in the Northern District of Illinois.
These consent decrees are part of a years-long effort by UL Solutions to deter vaping devices with counterfeit UL Marks from entering the marketplace. In 2019, UL Solutions brought its first suit against several manufacturers and distributors of these devices, including Kandy Pens and AFG Distribution. This case also ended with a consent decree, permanent injunction and judgment.
UL 8139, Standard for Electrical Systems of Electronic Cigarettes and Vaping Devices, was published in 2018. The UL 8139 safety standard is used to evaluate these products’ electrical, heating, battery and charging systems.
While compliance with UL 8139 is voluntary, over 35 manufacturers now have their vaporizer devices certified to this standard. Manufacturers that achieve UL certification have made the choice to put their products through the certification testing process, demonstrating their commitment to preventing serious injuries from lithium-ion battery fires and explosions.
With the increasing adoption of UL 8139 across the industry, some manufacturers applied counterfeits of the UL Mark to their products or packaging.
“Our investment in deterring counterfeiting delivers tangible value to our customers,” said Tammi Burke, director of customer marketing at UL Solutions. “Our customers invest heavily in designing and manufacturing their products to meet the requirements for UL certification. Only those companies that have earned our certification have the right to benefit from using the UL Mark. Counterfeiters of the UL Mark unfairly compete in the marketplace and claim an achievement they have not legitimately earned.”
“UL Marks appear on billions of products globally to demonstrate that these products meet scientific safety, performance or sustainability standards,” said Jackie McLaughlin, executive vice president and chief legal officer at UL Solutions. “To help safeguard the integrity of the UL Mark, we are committed to protecting our brand and taking on counterfeiters where necessary to protect the public and help fulfill our mission of working for a safer world. We applaud this decision by the Northern District of Illinois as it will help ensure the UL Mark remains a symbol of trust to the public.”
March 7, 2023
Top Court Declines to Hear Flavor Ban Appeal

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The U.S. Supreme Court on Feb. 27 declined to hear an appeal by three Reynolds American Inc. subsidiaries seeking to overturn the county of Los Angeles ban on flavored tobacco products, reports Law360.
R.J. Reynolds Vapor Co., American Snuff Co. and Santa Fe Natural Tobacco Co. had petitioned the high court in October to take another look at the case after the full 9th Circuit upheld a lower court’s dismissal of the suit.
The RAI companies said the 9th Circuit had twice before erred in allowing sales bans at the state and local level that were preempted by federal law.
While the federal Tobacco Control Act grants state and local municipalities broad authority to regulate the sale of tobacco products, it does not allow them to completely prohibit the sale of those products for failing to meet state or local tobacco product standards, the companies argued.
In dismissing their initial suit, District Judge Dale S. Fischer in 2021 found that the ban doesn’t regulate tobacco product standards. The judge said the ordinance is protected by the federal law’s preservation clause, which allows states and localities to prohibit the sale of tobacco products even if those bans are stricter than federal law.
The companies appealed, calling the ban unconstitutional and saying state and local governments can’t bar the sale of tobacco products because they disagree with federal tobacco standards.
L.A. County countered that the ban doesn’t pose an obstacle to federal policy since the FDA announced it intends to ban menthol cigarettes and all flavored cigars.
February 28, 2023
General Cigar Appeals Cohiba Ruling

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Scandinavian Tobacco Group’s (STG) General Cigar Co. has appealed the Trademark Trial and Appeal Board’s (TTAB) December 2022 cancelation of the Cohiba trademark registration in the United States.
“By initiating this lawsuit to appeal the TTAB decision and to obtain a declaration of its rights, General Cigar expects the court will ultimately rule it has exclusive U.S. rights to the Cohiba marks,” Regis Broersma, president of STG’s North America and Rest of the World division was quoted as saying by Cigar Journal.
STG and Empresa Cubana del Tabaco (Cubatabaco) have fought over the U.S. rights to the Cohiba trademark since 1997. The TTAB sided in favor of the Cuban cigar conglomerate in its claim on the name, saying that General Cigar Co.’s registrations on the Cohiba trademark are to be canceled due to a violation of an international agreement that dates back to 1929.
However, General Cigar believes the TTAB decision is improperly based on the re-litigation of a claim that was decided in General Cigar’s favor by a U.S. Court of Appeals for the 2nd Circuit more than a decade ago.
In February 2005, the 2nd Circuit Court of Appeals in New York ruled unanimously in favor of General Cigar.
While there are more trademark conflicts between Cuban and American cigar companies, Cohiba is a unique case due to both its prominence on the global stage and its creation by the state-run tobacco company after the Cuban Revolution, whereas other brands with Cuban roots that General Cigar Co. owns, such as Partagas, Hoyo de Monterrey and La Gloria Cubana, were assumed by the Cuban government in 1959.
While the lawsuit moves forward, General Cigar said it will continue to manufacture, market, sell and enforce its Cohiba trademarks.
February 27, 2023
Texas Court to Hear Exploding Battery Case

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The Supreme Court of Texas has agreed to hear a lawsuit by a vaper burnt by an exploding battery to determine if Texas courts have jurisdiction over LG Chem America, a subsidiary of South Korea-based LG Chem, which made the battery, reports Law360.
In 2016, Texas resident Tommy Morgan bought an 18650 lithium-ion battery manufactured by LG Chem. He claims it unexpectedly exploded and caught on fire, leading to him suffering permanent and severe injuries, according to his lawsuit filed in 2019 in Brazoria County District Court.
The companies are facing other lawsuits by Texas residents with similar claims concerning batteries exploding. But intermediate appeals courts have come to different conclusions on whether LG Chem has enough contacts in the state to face claims.
LG Chem America and LG Chem have argued that Texas courts lack jurisdiction because the companies don’t sell individual batteries in Texas nor directly to Texas customers. LG has consistently stated in litigation throughout the country that this battery was never intended to be used in e-cigarettes or vaping devices.
Morgan told the Texas high court that the company deliberately shipped its products to Texas customers who were later injured, therefore Texas courts have jurisdiction.
February 27, 2023
FDA Appeals Rejection of Graphic Warnings

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The U.S. Food and Drug Administration has appealed a court ruling that found the agency’s graphic health warning rule unconstitutional, reports CSP.
On Dec. 7, a federal judge in Texas blocked the FDA from enforcing a rule requiring tobacco companies to print graphic health warnings on their products, saying they violated free speech protections under the First Amendment.
The graphic cigarette health warning rule required manufacturers and retailers who sell cigarettes to rotate 11 health warnings on cigarette packs, which consisted of textual statements and color graphics depicting the negative health consequences of cigarette smoking.
The Texas court said the graphic cigarette health warnings would have compelled manufacturers and retailers to speak by displaying cigarette packages on store shelves and advertising cigarettes when, if given the choice, manufacturers and retailers would choose not to do so. The court also said the warnings were not purely factual and were open to interpretation by consumers and more extensive than necessary.
The FDA appealed that decision on Feb. 1 in the U.S. Court of Appeals for the Fifth Circuit, according to court documents.
The Family Smoking Prevention and Tobacco Control Act of 2009 instructs the FDA to create visual health warnings, but the D.C. Circuit in 2012 blocked the agency’s first attempt, saying that regulators had not convincingly demonstrated that the warnings would actually reduce smoking.
In March 2020, the FDA released the final rule requiring new graphic warnings for cigarettes that feature some of the lesser known but still serious health risks of smoking, such as diabetes, on the top half of the front and back of cigarette packages and at least 20 percent of the area on the top of cigarette advertisements.
Several tobacco companies, including R.J. Reynolds Tobacco Co., filed a First Amendment challenge in April 2020. The rule was set to take effect in November 2023 after the deadline was repeatedly pushed back by court.
According to health groups, the U.S. has fallen behind other countries with its tobacco control policies. Prior to 2009, when Congress passed the Tobacco Control Act, only 18 countries required graphic warnings for tobacco products, they pointed out. Today, more than 120 countries require them.
February 24, 2023